IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

NO. 11-0544

MICHAEL J. GLEASON,

Petitioner,

v.

GEORGE JANICE, WARDEN, STEVENS CORRECTIONAL CENTER,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO THE PETITION FOR APPEAL AND NOTE OF ARGUMENT

DARRELL V. MCGRAW, JR. ATTORNEY GENERAL

LAURA YOUNG ASSISTANT ATTORNEY GENERAL 812 Quarrier Street, 6th Floor Charleston, West Virginia 25301 Telephone: 304-558-5830 State Bar No. 4173 E-mail: ljy@wvago.gov

Counselfor Respondent

TABLE OF CONTENTS

Page

I. STATEMENT OF THE CASE ............................................. 1

II. SUMMARY OF THE ARGUMENT ........................................ 4

III. STA TEMENT REGARDING ORAL ARGUMENT AND DECISION .............. 7

IV. ARGUMENT ........................................................... 7

A. THE COURT DID NOT ERR BY RULING THAT THE ASSISTANCE OF PETITIONER'S TRIAL COUNSEL WAS NOT INEFFECTIVE ............ 7

B. THE COURT DID NOT ERR IN DETERMINING THAT THE OFFENSE OF A TTEMPTED SECOND DEGREE SEXUAL ASSAULT WAS ANCILLARY TO THE OFFENSE OF ABDUCTION WITH INTENT TO DEFILE .............. ,' ......................................... 12

C. THE TRIAL COURT DID NOT COERCE THE JURY INTO RETURNING A VERDICT .................................................... 13

D. THE TRlAL COURT DID NOT ERR IN FAILING TO DECLARE A MISTRIAL UPON SOME POTENTIAL JURORS ACCIDENTALLY VIEWING A PHOTOGRAPH OF THE VICTIM ........................ 14

E. THE COURT DID NOT ERR IN DETERMINING THAT PETITIONER'S CONVICTIONS FOR UNLAWFUL ASSAULT AND ATTEMPTED SECOND DEGREE SEXUAL ASSAULT DID NOT CONSTITUTE DOUBLE JEOPARDY ............................................ 16

V. CONCLUSION ........................................................ 18

TABLE OF AUTHORITIES

CASES Page

Blockberger v. United States, 52 S. Ct. 180 (1932) .................................. 17

STATUTES

Strickland v. Washington, 104 S. Ct. 2052 (1984.) .................................... 7

State v. Davis, 180 W. Va. 357, 376 S.E.2d 563 (1988) ............................... 12

State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) ............................... 7,8

State v. Newcomb, 223 W. Va. 843,679 S.E.2d 675 (2009) ........................... 15

State v. Pannell, 225 W. Va. 743, 696 S.E.2d45 (2010) .............................. 14

State v. Williams, 172 W. Va. 295 305 S.E.2d 251 (1983) ................ , ............ 10

State v.Zaccagnini, 172 W. Va. 491, 308 S.E.2d l31 (1983) ........................... 17

W. Va. Code § 61-2-9 ................. : ....................................... 17

W. Va. Code § 61-8B-1 (7) ..................................................... 18

W. Va. Code § 61-8B-4 ....................................................... 17

-11­

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

NO. 11-0544

MICHAEL J. GLEASON,

Petitioner,

v.

GEORGE JANICE, WARDEN, STEVENS CORRECTIONAL CENTER,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO THE PETITION FOR APPEAL AND NOTE OF ARGUMENT

Comes now the Respondent, the State ofWest Virginia, by Laura Young, Assistant Attorney

General, pursuant to the West Virginia Revised Rules ofAppellate Procedure 1 O(d) and according

to an Order of this Honorable Court, dated March 29,2011, and responds to the petition for appeal

and note of argument as follows.

I.

STATEMENT OF THE CASE

On March 1,2005, the viCtim, R. W., traveled from the DMV in Clarksburg back to her

home in Fairmont. (App. at 279.) She noticed that she was being followed by a white Pontiac

Sunfire. (Jd. at 282.) She returned to her apartment, where she lived alone. There was a knock on

her door, but when she answered, no one was present. (Jd. at 286.) Again, there was a knock at the

door. When she opened the door the second time, there was a stranger. When she tried to shut the

door, he pushed it open and forced his way in. He immediately grabbed her with both arms, pinning

her arms. She screamed. (Id. at 288-289.) The stranger told her to be quiet and when he covered

her mouth, she bit him. He then shoved her to the floor; hitting her head very hard. (Id. at 290.) The

man told her to pull down her pants. During her struggle, the victim noticed duct tape, which the

stranger had brought to the apartment with him. Further, the stranger had relocked her apartment

door. She struggled to get out, but the stranger grabbed her again. She fell, and hit her eye. After

a lengthy struggle, the person left. (Id. at 289-291.)

R. W. called the police and was able to give them a description of the individual who had

attacked her. (Id. at 293-294.) The attack left her with a permanent scar near her eye. (Id. at 295.)

She identified the petitioner, Michael Gleason as her attacker at trial. (Id. at 296.) She was

vigorously cross examined by trial counsel. (Id. at 297-306.) R. W. further testified that she

believed the petitioner's motivation behind the attack was to rape her. (Id. at 316.)

Neal Minarik lived in the same apartment complex as R. W. and noticed on the day of the

attack that there was a Pontiac Sunfire parked blocking his parking space. Mr. Minarik noted the

license plate number because he believed he might need to have the vehicle towed. (Id. at 313.)

Further, he noticed the driver get into the Sunfire, and identified the petitioner as that person. (Id.

at 125-126.)

Further testimony indicated that the petitioner quit his steady job, without picking up his last

paycheck. He gave no notice to his employer. (Id. at 360.) The petitioner's girlfriend testified the

petitioner had visited her in Virginia and left to return to his home in Pennsylvania driving a white

Sunfire on March 1, 2005. (Id. at 383.) The petitioner later phoned her and told her that he had been

involved in an altercation at a rest stop. Further, the petitioner came to visit her by driving to

2

Cambridge, Ohio, from his home in Pennsylvania and took the bus to Tennessee, where she picked

him up. The stated reason for the bus trip was that the petitioner wanted to avoid the State of West

Virginia because the police were looking for him. (Id. at 396-397.) Later, the petitioner admitted

to her that he had lied about the rest stop incident, that he had actually followed a girl home on the

interstate, gone into her apartment, when she became hysterical for no reason. (Id. at 406-407.)

Sergeant Moran of the Fairmont police department testified that pictures were taken of the

apartment which showed an obvious struggle, and that no fingerprints linking the petitioner to the

crime were found in the apartment. (Id. at 426.)

The petitioner testified at trial and admitted that, although his primary purpose in exiting the

interstate was to use the restroom, he circled around, saw the victim's car and thought he could get

a date with her. (Id. at 455.) The petitioner testified that the victim opened the door for him, and

that she said she had a boyfriend and started throwing things at him. (Id. at 456.) The petitioner

admitted physical contact with the victim, struggling, and falling to the floor. (Id. at 457.)

The jury returned verdicts fmding the petitioner guilty of abduction with intent to defile,

burglary, attempted second degree sexual assault, and unlawful assault. The trial court determined

that the offense of attempted second degree sexual assault was ancillary to the offense of abduction

with intent to defile, and reversed the petitioner's conviction as to that count. (Id. at 574.)

The petitioner was sentenced to terms ofthree years to ten years for the offense of abduction

with intent to defile; one year to ten years for burglary; and one to five years for unlawful assault.

(Id. at 580-581.) The petitioner's brief indicates that a direct appeal of this conviction was refused

by this Honorable Court.

3

Mr. Gleason, by counsel, filed a petition for writ of habeas corpus alleging ineffective

assistance ofcounsel, error in the trial court's failure to dismiss the charge ofabduction with intent

to defile, error in the trial court's coercion of a jury verdict, and failure to grant a judgment of

acquittal for unlawful assault. (Id. at 8-28.) Following a hearing on the petition for writ, the court

entered an order denying the petition. (Id. at 173-188.) The petition for appeal ensued. Additional

facts from the appendix, particularly from the transcript of the trial and habeas hearing will be

developed in conjunction with the argument, as necessary.

II.

SUMMARY OF THE ARGUMENT

Trial counsel was not ineffective for any of the reasons proffered by the petitioner. The

petitioner alleges that tri.al counsel instructed him to lie at trial. After listening to testimony from

Mr. Gleason, his mother, and Mr. Jones, the habeas court determined that Mr.Gleason and his

mother were not remotely credible as to that issue. Mr. Jones was asked by the court reporter on

approximately three occasions to speak up. Each ofthose occasions was before the jury was sworn.

There is no indication in the record that any juror could not hear Mr. Jones during trial, and a review

of the transcript indicates that witnesses could hear and respond to Mr. Jones, despite the poor

acoustics. Mr. Jones explained that he did not ask the victim's neighbor whether he heard screaming

because that witness refused to speak to his investigator. That clearly is a matter of trial strategy,

. and not subject to an ineffective assistance analysis. Although a photograph of the victim was

displayed in the courtroom before jury selection, it was briefly displayed. Only one person who

served on the jury saw the photograph, and that individual stated that she paid no attention to the

photograph and that it would not influence her decision. Clearly, the jury was qualified to serve, and

4

a mistrial was unwarranted. Further, the photograph in question was admitted into evidence during

trial, and habeas counsel does not argue that it was inadmissible. Mr. Jones did emphasize that the

petitioner's fingerprints were not found at the scene. The decision not to question the victim about

her clothing in the photographs-assuming that the petitioner made his counsel aware that she had

changed clothing was clearly trial strategy. Additionally, there is nothing to support the contention

that the result at trial would have been different but for counsel's alleged errors. Therefore, the claim

of ineffective assistance of counsel is without merit.

The trial court determined that the charge of second degree sexual assault was ancillary to

the offense ofabduction with intent to defile. The evidence at trial demonstrated that the petitioner

forced himself into the victim's residence, locked the door and had duct tape, thereby both

restraining the victim in her apartment and demonstrating a willingness to further restrain her. He

ordered her to take her pants off. The court determined that the abduction charge and the attempted

sexual assault were duplicitous. The offense ofabduction with intent to defile was completed when

the defendant held her agai~st her will with the intention of sexually assaulting her. The court

determined that the principal offense was the abduction with intent to defile and that the less serious

offense was ancillary, which is consistent with West Virginia law.

The trial court at the beginning of the trial informed the jurors that although he believed the

trial would conclude in two days, that if it did not, the trial would not be held on Friday, as the judge

would be absent. He requested that the jurors let hip1 know ifthat caused any problems, and that any

jurpr who could not return on Monday would be excused. CAppo at 221.) Therefore, since the jurors

knew before jury selection that returning on Monday was a possibility, the judge's neutral reminder

of the court's schedule could in no way have influenced a verdict. Further, the judge carefully

5

explained that it was the option ofthe jurors to stay and deliberate-as late as they cho se--or ,to return

on Monday. (Id. at 55l.) Therefore, the verdict was in no way coerced.

As mentioned earlier, photographs of the victim, later admitted into evidence were briefly

shown in open court prior to jury selection. Only three potential jurors saw the photograph, and of

those the one juror selected who saw the photograph, stated that she didn't really notice it and it

would not prejudice her. A mistrial was unnecessary and the defendant was not prejudiced by this

hannless mistake.

Unlawful assault and attempted second degree sexual assault are criminal offenses which

contain different elements, and therefore, an individual can be convicted for the completed offense

of unlawful assault-the cut on the victim's face which left a scar-and attempted second degree

sexual assault-which requires an attempt to engage in sexual intercourse or sexual intrusion without

the consent of the victim and by forcible compulsion. Each offense requiring proof of an element

which the other offense does not, destroys any argument as to double jeopardy. Further, the trial

court vacated the attempted second degree sexual assault conviction based upon its ancillary nature.

In terms of proof, the state proved that the petitioner engaged in a physical altercation with the

victim, which he started, which resulted in an injury to her head, leaving a scar. The elements of

unlawful assault are that a person by any means cause bodily injury with intent to maim or disfigure.

The jury was entitled to infer that the petitioner intended the natural consequences of his action,

which, since he overpowered the victim and knocked her to the floor twice, hitting her head and

cutting it, ultimately leaving a scar, fulfilled the evidentiary requirements for this offense.

6

In.

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

The respondent believes that oral argument is unnecessary in this matter as the dispositive

issue or issues have been authoritatively decided and the facts and legal arguments are adequately

presented in the briefs and record on appeal, and the decisional process would not be significantly

aided by oral argument. In addition, this matter is appropriate for a memorandum decision.

IV.

ARGUMENT

A. THE COURT DID NOT ERR BY RULING THAT THE ASSISTANCE OF PETITIONER'S TRIAL COUNSEL WAS NOT INEFFECTIVE

The standard for determining whether or not counsel was an effective representative was

enunciated inStricklandv. Washington, 104 S. Ct. 2052 (1984.) Stricklanddeveloped a two-pronged

test to determine effectiveness, an objective test, and a subjective test. Objectively, there must be

evidence that demonstrates that counsel's performance fell below an objective standard of

reasonableness. Additionally, "Judicial scrutiny of counsel's performance must be highly

deferential, and a fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight. ... "(Id. at 2055.) Subjectively, those who assert that

counsel was ineffective must demonstrate, from the totality of the evidence, that "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." (Id. at 2055-56.)

West Virginia has adopted the two pronged test for determining effective representation. As

stated in Syl. Pt. 5 of State v. Miller, 194 yv. Va. 3, 459 S.E.2d 114 (1995), "...(1) Counsel's

7

performance was deficient under an objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings

would have been different." Syl. Pt. 6 of Miller adds that courts must refrain from "engaging in

hindsight or second-guessing of trial counsel's strategic decisions."

The representation oftrial counsel was not ineffective under either the 0 bjective or subj ecti ve

test. The petitioner asserts that counsel was ineffective because he instructed his client to lie at trial.

At the omnibus habeas hearing, Mr. Jones, an attorney of more than 50 years experience testified

defInitively that he did not instruct the petitioner to lie, and was surprised that the petitioner testified

that he got off the exit looking for a bathroom. (App. at 107.) He added that he believed the

petitioner was embellishing his testimony to make himself appear somewhat less culpable. (Id. at

114.) The "embellishment" ofthe testimony was the petitioner's and his alone. The petitioner and

his mother, who obviously have motivation to fabricate testimony, testified somewhat differently at

the habeas hearing. However, the judge at the habeas hearing found Mr. Jones' testimony credible,

and rejected the testimony of the biased witnesses, the petitioner and his mother. As stated in the

habeas order (Id. at 183), the testimony ofthe petitioner and his mother was not remotely believable.

The court found that Mr. Jones did the best he could to limit the damage caused by petitioner's own

failures of a witness. As there is no evidence that Mr. Jones instructed his client to lie, Mr. Jones

was not ineffective as to this alleged error.

Petitioner asserts that the jury got peeved with Mr. Jones because he was somewhat soft

spoken. Putting aside for the moment that there is no precedent for granting habeas relief because

counsel speaks softly, the record reflects that on approximately three occasions duringjury selection,

the court reporter requested Mr. Jones to speak up. Following jury selection, Mr. Jones engaged in

8

opening statement, closing argument, cross-examination of witnesses, direct examination of

witnesses and bench conferences, and was not asked to speak louder. A fair reading ofthe transcript

indicates that Mr. Jones' questions were heard by the witnesses, and they responded appropriately.

Further, no member of the jury brought to the court's attention any difficulty in hearing Mr. Jones

in a courtroom described by the presiding judge as "cavernous." (Id. at 183.)

Counsel attacks the decision of Mr. Jones not to cross-examine Neal Minarik. Mr. Minarik

testified that he heard loud bangs from the downstairs apartment, had noticed a vehicle parked where

it should not be and noted its license plate, which was ultimately traced to the petitioner. Mr.

Minarik further testified that he did not speak to Mr. Jones' investigator. Therefore, as Mr. Jones

could notreasonably know what Mr. Minarik might state on cross examination, and that Mr. Minarik

had been an effective witness in placing the petitioner at the scene ofthe crime and hearing unusual

noises, it was a strategic decision to again, limit the damage caused by an effective prosecution

witness.

The assertion that Mr. Jones was ineffective because he failed to raise the issue of the

petitioner's fingerprints not being found at the scene, specifically on the deadbolt, is not supported

by the trial transcript. Mr. Jones questioned Sergeant Moran about a fingerprint found in the

apartment, and forced her to say not once, but twice, that the fingerprint was not the petitioner's. (Id.

at 426-27.) Mr. Jones also emphasized in closing arguments that none of the petitioner's

fingerprints were found on the door. (Id. at 537.) Additionally, Mr. Jones is deemed ineffective

because he did not challenge the victim as to whether she had or had not changed her clothing before

pictures were taken of her at the hospital. There is no evidence in the record of the habeas hearing

to demonstrate that the victim had or had not changed clothing, and that ifshe had, that the petitioner

9

made Mr. Jones aware of that fact. Further, whether or not she changed her clothing was not

germane to any issue at trial, and to emphasize the victim's bloody face in the pictures while asking

her if the clothes she had on in the picture were the ones she wore during the attack was a strategic

decision.

A picture ofthe victim's face showing her injuries was briefly displayed in the courtroom

prior to jury selection, and one juror who saw the picture ended up serving on the jury. That juror

at jury selection testified that "I saw it, but I didn't pay any attention to it." In response to a question

from the judge, she denied that the brief glimpse ofthe picture would affect her decision in any way.

(Id. at 239.) Mr. Jones is criticized for not moving for a mistrial because of the fleeting glimpse of

a photograph, which was later admitted into evidence. However, the law in West Virginia is clear

that a mistrial should be granted only where the~e is "manifest necessity." State v. Williams, 17'2 W.

Va. 295 at 304, 305 S.E.2d 251 at 260 (1983). Mr. Jones testified that he did not move for a mistrial,

because he thought such motion would be futile. The judge confirmed that belief in the order

denying habeas relief. The only)uror selected to serve who acknowledged seeing the picture stated

it would not affect her decision. The picture was properly admitted into evidence. The jury which

convicted the petitioner was a fair and impartial jury, and the petitioner has pointed to no evidence

indicating that the jury was not impartial save for speculation.

Habeas counsel cites as ineffective Mr. Jones' failure to object to the admission of

photographs of the victim and their publication to the jury via an in court projection device.

However ,-counsel states no law nor evidence which would render accurate photographs ofthe victim

inadmissible at trial. The record does reflect that Mr. Jones did object to the use of the projection

device to publish the photographs ofthe victim as inflammatory. That objection was overruled.

10

(App. at 342.) The treating physician testified that the photographs of the victim reflected her facial

contusions, abrasions, and a laceration. (Id. at 351.) Those photographs were probative as to

whether or not the offenses of attempted second degree sexual assault and unlawful wounding had

occurred, and as they were accurate depictions ofthe victim-and habeas counsel does not assert they

were inaccurate-they were admissible. Therefore, any motion to exclude them was futile, and no

reasonably competent defense counsel would have attempted their exclusion.

Further, not only were none of these alleged errors objectively ineffective, there is no

reasonable probability that anything counsel did would have affected the outcome of the trial. The

victim testified that a car followed her on the interstate, and that a stranger later knocked on her door,

forced his way in, physically accosted her and demanded that she remove her pants. She was

knocked twice to the floor, and received a permanent injury in the form of a scar on her face. Her

upstairs neighbor heard loud noises, identified the petitioner's car and further identified the petitioner

as the individual he saw leaving the apartment on the day of the crime. Photographs were taken of

the room in which the struggle took place. Photographs were taken of the victim's injuries.

Testimony was adduced about the petitioner's failure to return to his steady job and his assiduous

avoidance ofthe state of West Virginia when he left his home in Pennsylvania, without warning, to

join his girlfriend in Virginia. Further the petitioner testified and admitted following the victim on

the interstate and going to her home, merely because she smiled at him. He admitted going into her

apartment. He further admitted thl~t there was a physical altercation, started, incredibly enough

according to his testimony, for no reason by the victim herself.

Accordingly, performance of Mr. Jones at trial was not ineffective under the two-pronged

test.

11

B. THE COURT DID NOT ERR IN DETERMINING THAT THE OFFENSE OF ATTEMPTED SECOND DEGREE SEXUAL ASSAULT WAS ANCILLARY TO THE OFFENSE OF ABDUCTION WITH INTENT TO DEFILE.

The trial court determined that the offense of attempted second degree sexual assault was

ancillary to the offense of abduction with intent to defile and determined that it would violate the

principles of double jeopardy to impose sentences on both those counts, even though the jury had

convicted the petitioner ofboth offenses. The court noted that the petitioner completed the offense

ofabduction with intent to defile. Factually, the court found that while the victim had opened her

door in response to a knock, the petitioner had forced his way into her apartment, and he locked the

deadbolt after forcing his way in, thereby preventing the victim from escaping. Further, the

petitioner, after locking the victim's door produced a roll of duct tape. The clear inference is that

the petitioner intended to further restrain the victim by binding her with the tape. (App. at 627-28.)

The court found that the act ofabduction was completed when the petitioner held the victim

against her will with the intention of sexually assaulting her. (Id. at 632.) Therefore, the petitioner

actually completed the commission ofthat offense. His attempt to have forcible sexual intercourse

with the victim was overcome by her earnest resistance. Therefore, he did not complete that offense.

The principal criminal offense, therefore, was the completed offense. Under the dictates ofState v.

Davis, 180 W. Va. 357,376 S.E.2d 563 (1988), the court detennined that the petitioner could not

be punished for both offenses, and detennined that the offense which was actually completed was

the principal offense, and the offense which was only attempted was the ancillary offense. The

holding in Davis does not require the dismissal ofthe abduction with intent to defile charge. Again,

the act of apduction with intent to defile was completed by the petitioner. Davis does not suggest

12

that the offense which was actually completed is the incidental or ancillary offense to the one that

was merely attempted.

Therefore, the analysis performed by the Court in determining that the completed offense was

the principal offense, and the attempted offense was ancillary was correct both factually and legally.

The conclusion of the trial court, as affirmed in the habeas hearing was correct.

C. THE TRIAL COURT DID NOT COERCE THE JURY INTO RETURNING A VERDICT.

Prior to any question on voir dire, the trial judge infonned the jury that he believed the case

would take two days to try. However, he further informed the jury that if the matter was not

concluded in two days, that court would not be in session on Friday, as the judge had a prior

commitment, and that the trial would go over to the following Monday. He informed the jury that

if the possibility that the case might go to Monday caused any individual problems, that person

would be excused. (App. at 221.) The record does not reflect that any juror who was selected to

serve on the jury indicated that returning on Monday was a problem. The jury deliberated for

approximately three hours, and asked a question. The court noted that it was approximately 4:25

p.m:, and instructed the jury that it should determine its own schedule. The judge informed the jUry,

that they could quit and return on Monday, as he had informed the jury at the beginning ofvoir dire

he was not available on Friday. Alternatively, the judge indicated that he would stay as late as the

jury wished, and that the decision was "basically a decision you should make." (Id. at 551.) The jury

returned verdicts later that day.

The petitioner engages in rampant speculation that the trial judge's gentle reminder to the

jury about his schedule, and his willingness to abide by the jury's decision as to how late they wished

13

to stay and deliberate must have coerced a verdict. There is absolutely no evidence in the record to

support such speculation. Syllabus Point 1 of State v: Pannell, 225 W. Va. 743, 696 S.E.2d 45

(2010), notes that whether instructions coerce a verdict depends upon the facts of each case and is

not determined by any hard and fast rule. The fact pattern ofPannell indicates that the jury began

deliberation at about 1 :00 p.m., broke for lunch, and informed the judge at 4:49 p.m. that they were

not making progress. The jury inquired as to how long they could deliberate on Friday, and whether

they could return on Monday. The judge informed the jury that they could deliberate as long as they

wished on Friday, but that returning on Monday was an impossibility as both the judge and one of

the jurors were leaving on vacation. The Pannell court noted that the fact that the jury deliberated

for a number of hours and requested to see items of evidence indicated that it was engaged in the

process contemplated by jurisprudence. (Id. at 750,696 S.E.2d at 57.) Similarly, in the case at bar,

the jury engaged in deliberation~ for a number of hours and asked for clarification of the word

"intent." In Pannell, there was no indication from the judge that he would not let the jurors leave

if they were hopelessly deadlocked. Similarly, there was no indication that the judge inthe case at

.bar was going to force the jury to deliberate until it reached a verdict. A trial judge "has an inherent

need t9 address both time constraints and the potential for scheduling issues. . . . The mere

discussion of scheduling issues, . . . does not give rise to a presumption that the verdict was

improperly coerced." (Id at 750, 696 S.E.2d at 52, citations omitted.)

There being no evidence that the judge in any way coerced a verdict, the habeas court was

clearly correct in refusing to grant relief on this issue

D. THE TRIAL COURT DID NOT ERR IN FAILING TO DECLARE A MISTRIAL UPON SOME POTENTIAL JURORS ACCIDENTALLY VIEWING A PHOTOGRAPH OF THE VICTIM.

14

A photograph of the victim, which was later admitted into evidence at trial and published

to the jury was briefly shown in the courtroom prior to voir dire. Potential jurors were present in the

courtroom at the time. Clearly, showing such photograph constituted error, but such error was

harmless beyond a reasonable doubt.

Syllabus Point 6 of State v. Newcomb, 223 W. Va. 843,679 S.E.2d 675 (2009), states that

"The object of the law is, in all cases in which juries are impaneled to try the issue, to secure

[persons] for that responsible duty whose minds are wholly free from bias or prejudice either for or

against the accused."

Again, the petitioner engages in rampant speculation that because the photograph was briefly

shown before jury selection, the jurors must have been biased against the petitioner. There is

absolutely no evidence in the record to indicate that the jurors selected to try the matter were not free

from bias for or against the petitioner, and no evidence to show that the photograph in any way

WOUld, or did, influence the jury's decision.

The matter of the photograph was brought to the court's attention by petitioner's trial

counsel. (App. at 220.) The potential jurors were asked if they had any knowledge of the case

whatsoever. Three potential jurors indicated that they had seen or heard news reports about the

incident. One juror who indicated that she could not necessarily disregard the news coverage was

excused by the judge. (ld. at 225-26.) The other two individuals indicated definitively that they

would not be affected by what they had read or seen in media coverage. (ld. at 227-29.) The jurors

were asked ifthey had any preconceived opinion as to the petitioner's guilt, and there was a negative

response. (Id. at 231-32.) The jurors were asked if there was any reason they could not sit on the

jury and render a fair and impartial verdict, and the only prospective jurorwho responded stated that

15

medication made him drowsy, and was excused. The question about there being any reason why a

potential juror could not be fair and impartial was repeated. (Id.232-233.) The standard questions

regarding whether the potential jurors knew any of the parties, attorneys, or witnesses were asked.

Each potentialjuror who indicated some knowledge oforrelationship to a party, attorney, orwitness

indicated unequivocally that he would be a fair and impartial juror despite such affmity. (Id. at 234­

38.)

The potential jurors were asked specifically about the incident with the photograph. Three

potential jurors acknowledged seeing the photograph. Each stated that the incident would not

influence them in any way, and that it would not affect them in any manner. Further, the Court

specifically instructed the potential jurors to disregard the photograph, that it was not evidence, and

that it was shown inappropriately. (Id. 238-39.) All the jurors agreed that the petitioner was entitled

to a fair trial, and again, were asked by the assistant prosecuting attorney whether any potential juror

felt that he could not sit on the panel. There was no response from any prospective juror. (Id. at

243.) Therefore, it is clear that the jury panel was free from bias against the petitioner, whatever

the source, including but not limited to the inadvertent showing of the victim's photograph. As the

jury was free from exception, the speCUlative contention that the jury "must" have been negatiVely

influenced by the photograph (later admitted into evidence) is without merit.

E. THE COURT DID NOT ERR IN DETERMINING THAT PETITIONER'S CONVICTIONS FOR UNLAWFUL ASSAULT AND ATTEMPTED SECOND DEGREE SEXUAL ASSAULT DID NOT CONSTITUTE DOUBLE JEOPARDY.

The petitioner assigns as error by the lower court that the charge ofunlawful assault should

have been dismissed as conviction and punishment for both unlawful assault and attempted second

16

degree sexual assault violate the principles ofdouble jeopardy. Assuming that this ground ofalleged

error can be argued, as the lower court already withheld punishment on the offense of attempted

second degree second assault, finding that it was ancillary to the offense ofabduction with intent to

defile, it is apparent that to present these two offenses to the jury does not violate the principles of

double jeopardy. Blockberger v. United States, 52 S.Ct. 180, (1932), enunciates the traditional test

of double jeopardy which is to determine whether each separate statutory provision requires proof

of an additional fact which the other does not. As stated in Syl. Pt. 8 ofState v. Zaccagnini, 172 W.

Va. 491,308 S.E.2d. 131 (1983), "Where the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to determine whether there are two offenses or

only one is whether each provision requires proof of an additional fact which the other does not."

The elements ofunlawful assault are set forth in W. Va. Code § 61-2-9. In order to commit

that offense, an individual must shoot, stab, cut or wound any person or by any means cause him

bodily injury with intent to maim, disfigure, disable or kill. Therefore, the offense of unlawful

wounding requires proof of a wound. In this case, the victim had a permanent scar on her face as

a result of the petitioner's attack upon her. As to proof of his intent to maim, disfigure, disable or

kill, the jury was entitled to infer that the petitioner intended the natural consequences of his act.

That is the jury could infer that since the victim was wounded as a result of the petitioner's

unprovoked attack upon her and her heroic efforts to defend herself, the petitioner naturally intended

her to be injured. Further, the jury was entitled to infer that the attack was designed to disable her. .

The offense of attempted degree sexual assault requires that an individual attempt to commit that

offense, but not complete the offense. Sexual assault in the second degree is codified in W. Va.

Code § 61-8B-4. The elements of that offense are that an individual "engages in sexual intercourse

17

or sexual intrusion with another, without the other's consent, and that the lack of consent results

from forcible compulsion. Therefore, to be guilty of attempted degree sexual assault, one must

attempt to engage in sexual intercourse or sexual intrusion. W. Va. Code § 61-8B-1 (7) defines

sexual intercourse as any act between persons involving penetration of the female sex organ by the

male sex organ, or contact between the sex organs and the mouth or anus ofanoth~r. Subsection (8)

of that section defines sexual intrusion as any act involving penetration of the female sex organ, or

the anus by an object.

Therefore, unlawful assault contains an element-the wound-not required by attempted

second degree sexual assault, and attempted second degree sexual assault contains an

element-attempted intercourse or intrusion-not required by unlawful assault. Therefore, submission

ofboth offenses to the jury did not constitute a violation ofthe principles ofdouble jeopardy and did

not constitute error.

v.

CONCLUSION

Therefore, based upon the foregoing arguments of law, and recitations of fact, the State of

West Virginia, by counsel, respectfully requests that this petition for appeal be denied and that this

Honorable Court affirm the order of the Circuit Court of Marion County, entered March 1,2011,

denying the petitioner a writ of habeas corpus.

Respectfully Submitted,

State of West Virginia Respondent

By Counsel,

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DARRELL V. MCGRAW, JR. ATTORNEY GENERAL

LAURA yo&fK:~~ ASSISTANT ATTORNEY GENERAL 812 Quarrier Street, 6th Floor Charleston, West Virginia 25301 Telephone: 304-558-5830 State Bar No. 4173 E-mail: ljy@wvago.gov

Counsel for Respondent

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CERTIFICATE OF SERVICE

I, LAURA YOUNG, Assistant Attorney General, do hereby certify that I have served a true

copy ofthe Respondent's Briefin Opposition to the Petition for Appeal and Note ofArgument upon

Petitioner by depositing said copy in the United States mail, with first-class postage prepaid, on this

~/.l!- day of August, 2011, addressed as follows:

To: Frances C. Whiteman Whiteman Burdette PLLC 229 Jefferson Street Fairmont, WV 26554

LAURA YOUNG